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State v. Lien

Supreme Court of Oregon

May 9, 2019

STATE OF OREGON, Respondent on Review,
v.
TRACY LYNN LIEN, Petitioner on Review. STATE OF OREGON, Respondent on Review,
v.
TRAVIS ALLEN WILVERDING, Petitioner on Review.

          Argued and submitted March 8, 2018, at University of Oregon School of Law, Eugene, Oregon.

          On review from the Court of Appeals (CC 14CR02030) (CA A158646) (CC 14CR02034) (CA A158647) (Control).[*]

          Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

          Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, Justices, and Kistler, Senior Justice pro tempore. [**]

         [364 Or. 751] Case Summary:

         Police officers discovered incriminating evidence of unlawful drug possession in defendants' garbage by having a sanitation company manager specially pick up defendants' garbage bin on trash pick-up day, transport it to the sanitation company's facilities, and turn it over to the officers, who then searched the bin. Based on that evidence, the officers obtained a warrant to search defendants' home, after which defendants were arrested and charged with the unlawful possession and delivery of methamphetamine and heroin. The circuit court denied defendants' motions to suppress evidence derived from the warrantless search of their garbage bin, and they were convicted following conditional guilty and no-contest pleas to some of the charges against them. The Court of Appeals affirmed, reasoning that, under State v. Howard/Dawson, 342 Or. 635, 157 P.3d 1189 (2007) and State v. Purvis, 249 Or. 404, 438 P.2d 1002 (1968), defendants had lost constitutionally protected possessory and privacy interests in their garbage when the sanitation manager picked up the garbage bin.

         Held:

         The decision of the Court of Appeals is reversed, the judgments of the circuit court are reversed, and the cases are remanded to the circuit court for further proceedings. Drawing upon social and legal norms, the Court first holds that defendants had a protected privacy interest in their garbage, which they had placed within a closed opaque garbage bin put at curbside for collection by the sanitation company. The Court next holds that, under State v. Sines, 359 Or. 41, 379 P.3d 502 (2016), because the police officers had used the sanitation company manager as their agent to segregate and to bring them the personal information in the garbage for exposure in a search, the police officers were responsible for violating defendants' privacy interests and conducting a warrantless search of defendants' garbage. The Court concludes that the state failed to establish that the search was valid under the Oregon Constitution. The Court disavows its prior decisions in Howard/Dawson and Purvis to the extent that those cases hold otherwise.

         The decision of the Court of Appeals is reversed. The judgments of the circuit court are reversed, and the cases are remanded to the circuit court for further proceedings.

         [364 Or. 752] NAKAMOTO, J.

         Article I, section 9, of the Oregon Constitution provides, in part, that "[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure [.]" These consolidated cases concern whether the warrantless search of defendants' garbage bin violated a protected interest of defendants under Article I, section 9.

         Police officers discovered incriminating drug-related evidence in defendants' garbage by having a sanitation company manager specially pick up defendants' garbage bin on trash pick-up day, transport it to the sanitation company's facilities, and turn it over to the officers, who then searched the bin. After the trial court denied their motions to suppress that evidence, defendants were convicted on drug-related charges. The Court of Appeals affirmed those convictions, concluding that, although defendants retained protected possessory and privacy interests in the garbage while their bin rested at the curb, the police did not violate their interests by taking possession of the bin and searching its contents, because defendants had lost their interests when the sanitation company picked up their garbage bin.

         On review, we hold that defendants retained protected privacy interests in their garbage under Article I, section 9, which the police invaded when they searched defendants' garbage bin without a warrant. Accordingly, the trial court erred by denying defendants' motions to suppress evidence, and we reverse the decision of the Court of Appeals and the judgments of the circuit court and remand for further proceedings before the circuit court.

         I. FACTS AND PROCEDURAL HISTORY

         We begin with the facts concerning the retrieval and search of defendants' garbage bin, which are not disputed. While defendants lived together in Lebanon, Oregon, local police received information about possible drug activity at their house and decided to investigate. Lebanon Police Department Detective McCubbins contacted the sanitation company servicing the house, Republic Services. Republic is a private company that has a franchise agreement with the [364 Or. 753] City of Lebanon to pick up and haul garbage from private residences. Neither defendant had a separate written agreement with Republic.

         McCubbins asked Republic to collect the contents of defendants' garbage bin separately from the other private residences that Republic served so that defendants' garbage could be searched by police officers. A manager for Republic agreed to cooperate, obtaining defendants' garbage for the police before the regular garbage truck arrived at the house:

"On the day that defendants' garbage was usually picked up, the police parked down the street to observe Republic's collection of defendants' trash. The police arrived at 7:00 a.m. and noticed that defendants' garbage cart had already been placed by the sidewalk. On that morning, a manager for Republic drove to defendants' residence in a white pickup truck ahead of the larger mechanical sanitation truck that would normally collect defendants' garbage. The manager arrived outside defendants' residence around 8:00 or 9:00 a.m. The manager timed his drive to make sure that he showed up before the company's larger mechanical truck emptied the cart. The manager grabbed defendants' cart and placed it in his company pickup truck. The manager then provided defendants with an empty replacement cart from the back of his truck."

State v. Lien, 283 Or.App. 334, 337, 387 P.3d 489 (2017).

         Republic's manager then gave defendants' garbage bin to the police: "The manager drove defendants' bin and garbage to a Republic company lot where Republic stored its extra garbage carts. The manager then handed control of the cart to the police, who searched it and found, among other things, evidence of illegal drugs, including drug bin-dies." Id. Using that evidence, the police sought and obtained a warrant to search the home.

         Defendants were both subsequently charged with a variety of drug-related offenses. Before trial, both moved to suppress the evidence discovered in their garbage bin, arguing that the warrantless search, not otherwise encompassed by any exception to the warrant requirement, had violated their rights against unreasonable search or seizure under Article I, section 9.

         [364 Or. 754] At the hearing on defendants' motions to suppress, McCubbins testified for the state and described how the police had obtained defendants' garbage bin and the chain of custody of the bin and its contents. McCubbins acknowledged that defendants' garbage bin was handled "not in the normal manner" but, rather, "in a special manner" at his request.

         Defendants called defendant Lien and Republic's manager as witnesses. They testified concerning Republic's residential garbage service in Lebanon and the sanitation company's usual practices when picking up that garbage. Lien testified that she had lived at her residence for approximately five years and that Republic was the company that picked up her household garbage. She testified that some of that garbage was private in nature and that she had expected the garbage in defendants' bin "to be mixed with other people's garbage and go out to the landfill." She explained that, while she had no written agreement with Republic, she nevertheless had expected that the sanitation company would process defendants' garbage in the same way that it processed everyone else's garbage, that is, without anyone going through it before it was commingled and taken to the landfill.

         Republic's manager described the usual process of residential garbage collection and disposal: The garbage bins have lids, and customers must place their bins near the street within reach of the mechanical arm on the garbage truck. The company uses a large, automated side-load garbage truck to grab the bins and dump their contents into the opening at the top of the truck. The driver typically does not have to get out of the truck and does not see the contents of the individual garbage bins. A truck can hold the garbage of 350 to 400 households, and, once the truck is full, the driver takes it directly to the landfill and dumps the load of garbage out.

         Republic's manager also testified about agreements in place regarding Republic's residential services in Lebanon. He testified that Republic has a franchise agreement with the city to provide garbage service for city residents and that residents had no choice about which company collected their garbage. The sanitation company's franchise agreement did [364 Or. 755] not have a provision stating that it could provide a resident's garbage to law enforcement. Republic did not have a written agreement with its residential customers, nor did it tell customers that it may provide garbage to law enforcement officers at their request. The manager agreed that it was reasonable for Republic's customers to expect that their garbage would be picked up in the ordinary manner, that is, that the lid on the garbage bin would be closed and the bin then emptied into the mechanized garbage truck without the driver getting out and looking into the bin. He also testified that he collected defendants' garbage bin because the police asked him to do that, but he would not collect garbage from a customer for a private citizen because that would "violate the customer's privacy."

         The trial court credited the witnesses' testimony. Its findings included the following: "Defendants placed the garbage can at the curb," and "they believed that some of its contents were personal or private in nature." "No one provided any notice to defendants that their garbage was subject to search or examination." "Republic [S] ervices will bring customer's garbage to the police when requested but will not deliver garbage collected from defendants to anyone else." "Ordinarily when the garbage is picked up by Republic Services it is dumped at the Coffin Butte landfill," and "a single garbage truck holds the refuse of 350-400 households." "Republic's trucks are highly mechanized. In most instances the driver never touches the garbage cans-a mechanical arm picks up the cans and empties them into the truck. No employee ordinarily sees the garbage content."

         The trial court nevertheless denied defendants' motions to suppress. The trial court first concluded that Republic's manager, who had picked up and delivered defendant's garbage to the police, had "acted exclusively at the request and direction of the police" and "was acting as an agent for the state." It followed, the trial court continued, that the manager's seizure of defendants' garbage constituted state action. The trial court nevertheless concluded that defendants already had abandoned their garbage, along with any "reasonable expectation they would ever see their garbage again or have access to it," before the garbage had been picked up. The court concluded that, despite [364 Or. 756] defendants' subjective expectation of privacy, they retained no privacy interest in property that they had abandoned.

         After the trial court denied defendants' motions to suppress, defendants agreed to enter conditional guilty or no-contest pleas to some of the charges. See ORS 135.335(3) (providing that criminal defendants may, with the court's consent, enter conditional pleas of guilty or no contest while reserving the right to appeal adverse determinations of specified pretrial motions; defendants who prevail on appeal may withdraw original pleas). Defendant Lien conditionally pleaded guilty to one count of unlawful delivery of heroin, ORS 475.850, and no contest to one count of unlawful delivery of methamphetamine, ORS 475.890. Defendant Wilverding conditionally pleaded guilty to one count of unlawful delivery of methamphetamine, ORS 475.890. The remaining charges against both defendants were dismissed.

         Following the entry of judgments of conviction below, defendants appealed, arguing to the Court of Appeals that the trial court had erred in denying their motions to suppress evidence derived from the warrantless seizure and search of their garbage bin. Defendants asserted that

"[b]y asking the garbage company manager to collect defendants' garbage ahead of the regularly scheduled time and keep it separate for searching, the police enlisted the garbage company manager as a police agent. Thus, what occurred here is legally indistinguishable from the police themselves removing defendants' garbage from the curb, replacing it with an empty cart, and searching it. That is impermissible."

(Emphasis added.) Defendants acknowledged that this court's decision in State v. Howard/Dawson, 342 Or. 635, 157 P.3d 1189 (2007) (where police went through the defendants' garbage after the sanitation company agreed to deliver it), appeared-at least on its face-to control the outcome of their appeal. Defendants nevertheless contended that Howard/Dawson should be reexamined as either distinguishable in this instance or wrongly decided, arguing in accordance with Farmers Insurance v. Mowry, 350 Or. 686, 698, 261 P.3d 1 (2011), that the factual context for the decision in Howard/Dawson regarding the relinquishment of [364 Or. 757] constitutionally protected interests in garbage was different than in this case.

         The Court of Appeals, however, was not persuaded that Howard/Dawson was meaningfully different from this case, either factually or in the applicable legal analysis. The court concluded that defendants' possessory rights in their garbage-like those of the defendants in. Howard/Dawson- were deemed to have been lost once the garbage was retrieved by the sanitation company on its regularly-scheduled pickup day. Lien, 283 Or.App. at 340-42. With respect to defendants' privacy interests, the Court of Appeals noted that the Howard/Dawson defendants had raised similar privacy-based concerns before this court, which the court had rejected based on the rationale articulated in State v. Purvis, 249 Or. 404, 410-11, 438 P.2d 1002 (1968), that a person retains no constitutionally protected privacy interest in abandoned property. Lien, 283 Or.App. at 343. The Court of Appeals held that the trial court had properly denied defendants' motions to suppress and affirmed the judgments below. Id. In reaching that conclusion, however, the Court of Appeals did not discuss defendants' agency-related arguments concerning the role of Republic's manager as a police agent. We subsequently allowed and consolidated defendants' requests for review.

         II. ANALYSIS

         A. The Issue on Review

         Defendants argue that they had protected possessory and privacy interests in their garbage while their closed garbage bin sat at the curb. Cf. State v. Galloway, 198 Or.App. 585, 109 P.3d 383 (2005) (holding that the defendants retained possessory interests in contents of their closed garbage bins at curbside for collection and that they had not abandoned protected interests in garbage that the police had collected). The state does not engage with that argument and assumes, arguendo, that defendants had such interests.[1] The state then proceeds directly to the pivot point [364 Or. 758] for the parties: whether defendants retained either their possessory or privacy interests once the sanitation company manager-acting at the behest of, and as an agent for, the police-specially picked up the bin and transferred it to the waiting police officers for their inspection.

         On that issue, the parties respectively take "all" or "nothing" positions. Defendants argue that they retained both possessory and privacy interests in their garbage bin and its contents, and that those interests were violated when Republic's manager, acting in his role as an agent of the police, picked up their garbage bin and delivered it to the police. Thus, they argue, the police controlled the taking and delivery of their garbage bin, as well as the ensuing search of their garbage, all without a warrant and in violation of their rights under Article I, section 9.

         In contrast, the state contends that, although Republic's manager was in fact an agent of the police, this court's decisions in Purvis and Howard/Dawson stand for the proposition that individuals effectively abandon possessory and privacy interests in their curbside garbage once a sanitation company takes possession of it. Accordingly, in the state's view, by the time Republic's manager delivered defendants' garbage bin to the police, defendants had no constitutionally protected interests in their garbage. Thus, the state argues, the police were free to inspect defendants' garbage and did not violate Article I, section 9.

         In keeping with their respective legal positions, the parties initially address whether the police, acting through the sanitation company manager, seized defendants' garbage from the curb in violation of their protected possessory interests in that property. We choose not to decide that issue.

         Instead, we decide the other issue that the parties present: whether, after Republic's manager delivered defendants' garbage bin to the police, the police invaded defendants' privacy interests by searching defendants' garbage without a warrant, in violation of Article I, section 9. On that issue, the state bears the burden of establishing that the search "did not violate a protected interest of the defendant." State v. Tucker, 330 Or. 85, 89, 997 P.2d 182 (2000) [364 Or. 759] (emphasis in original); accord ORS 133.693(4) ("Where the motion to suppress challenges evidence seized as the result of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution.")-

         Ultimately, whether the police searched defendants' garbage bin and their garbage without a warrant in violation of their rights under Article I, section 9, turns on whether defendants had constitutionally protected privacy interests in the property. See State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986) ("Article I, section 9, protects privacy and possessory interests."). We first address, and agree with, defendants' contention that they had privacy interests in their curbside garbage, before Republic's manager arrived. We then discuss the legal underpinnings of the conclusion that the trial court, the Court of Appeals, and the parties all reached: The sanitation company manager was a police agent when he took and delivered defendants' garbage bin to the police. Finally, we address whether-as defendants assert-the role of the manager as a police agent is determinative of whether defendants retained their privacy interests in their garbage when the police searched it, or whether-as the state asserts-this court's conclusions on abandonment of privacy interests in Purvis and Howard/ Dawson are applicable to, and retain their viability in, the circumstances that this case presents.

         B. Privacy Rights

         Among other rights, Article I, section 9, grants "the people" the right to be "secure *** against unreasonable search" of their "effects." Thus, Article I, section 9, protects people by forbidding "certain acts of the government." State v. Campbell, 306 Or. 157, 166, 759 P.2d 1040 (1988) (emphasis in original). For purposes of Article I, section 9, a "search" occurs when "governmental action invades 'a protected privacy interest.'" State v. Newcomb, 359 Or. 756, 764, 375 P.3d 434 (2016) (quoting State v. Wacker, 317 Or. 419, 426, 856 P.2d 1029 (1993)).

         In Oregon, the right to privacy-the individual freedom from government scrutiny-protected by Article I, section 9, is not defined by private property or contractual [364 Or. 760] rights, although such rights may inform the analysis in a given case. Rather, this court has repeatedly explained that the right to privacy protected by Article I, section 9, "is the freedom from scrutiny as 'determined by social and legal norms of behavior, such as trespass laws and conventions against eavesdropping.'" Newcomb, 359 Or at 764 (quoting Campbell, 306 Or at 170) (emphasis added); see also State v. Smith, 327 Or. 366, 372, 963 P.2d 642 (1998) (reaffirming the court's "traditional construction of Article I, section 9, as protecting privacy interests, i.e., the individual's interest in freedom from certain forms of governmental scrutiny") (emphasis in original).[2] This court also has stated that the fundamental question underlying an Article I, section 9, search case is whether the government's conduct, "if engaged in wholly at the discretion of the government, will significantly impair 'the people's' freedom from scrutiny, for the protection of that freedom is the principle that underlies the prohibition on 'unreasonable searches' set forth in Article I, section 9." Campbell, 306 Or at 171. In other words, this court has recognized, first, that privacy-freedom from government scrutiny-is a fundamental principle and value protected by Article I, section 9 and, second, that privacy is grounded in particular social contexts.

         Accordingly, we determine whether defendants in this case had a protected privacy interest by first considering general social norms of behavior. Here, the relevant actors are the sanitation company manager, who, as a police agent, procured defendants' garbage bin and gave it to the police; defendants, who put out their opaque and closed garbage bin for trash collection, expecting that the sanitation company with an exclusive franchise in the city, [3] would pick up their garbage, commingle it with the garbage of hundreds of other households on the garbage truck route, and take it to the landfill; and police officers, who arranged for the taking of the garbage and who searched it. In our view, [364 Or. 761] under those circumstances, most Oregonians would consider their garbage to be private and deem it highly improper for others-curious neighbors, ex-spouses, employers, opponents in a lawsuit, journalists, and government officials, to name a few-to take away their garbage bin and scrutinize its contents. In this case, the sanitation company's manager acknowledged that norm: He would not collect garbage from a customer at the request of a private citizen because that would "violate the customer's privacy."

         Indeed, defendants make exactly that point, suggesting that most Oregonians would be outraged were their garbage subject to such examination and citing as support an article first published on December 23, 2002, in the Portland publication Willamette Week. The article catalogued items that its reporters had found by collecting the curbside garbage or recycling of three government officials in Portland then serving in law enforcement roles: the city's police chief, the mayor and commissioner of police, and the Multnomah County District Attorney. The reporters described what they had done as a "frontal assault" on privacy and reported some of the officials' angry reactions to having their personal refuse removed from curbside and publicly examined, including the mayor's statement that she considered "Willamette Week's actions in this matter to be potentially illegal and absolutely unscrupulous and reprehensible." See Chris Lydgate & Nick Budnick, Rubbish!, Willamette Week (December 11, 2017), http://www.wweek.com/portland/ article-1616-rubbish.html-2 (last accessed May 1, 2019).

         It is not hard to understand why people would want to keep their garbage private and would respond with outrage to such an invasion. As the New Jersey Supreme Court explained, "[c]lues to people's most private traits and affairs can be found in their garbage," and so it is common knowledge that most people are interested in keeping their garbage private. State v. Hempele, 120 N.J. 182, 201576 A.2d 793 (1990). In his dissenting opinion in California v. Greenwood, 486 U.S. 35, 50, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), Justice Brennan wrote:

"A single bag of trash testifies eloquently to the eating reading, and recreational habits of the person who produced it. A search of trash, like a search of the bedroom, [364 Or. 762] can relate intimate details about sexual practices, health, and personal hygiene. Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target's financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests."

         That description aptly illustrates the kinds of items routinely placed in garbage containers that people would consider to be private and why. Moreover, it supports the existence of a social norm of privacy concerning residential garbage placed in closed bins and put out at the curb for collection by the sanitation company. See also Jonathan Simon, Katz at Forty: A Sociological Jurisprudence Whose Time Has Come, 41 UC Davis L Rev 935, 962 (2007) (describing development of opaque plastic garbage bags in the 1960s and their residential use for household waste beginning in the 1970s as suggesting "the extraordinarily high value middle class Americans placed on hygiene and privacy").

         In addition to that social norm of privacy concerning residential garbage, legal norms concerning personal privacy support recognition of a protected privacy interest in the contents of closed, opaque residential garbage bins placed at curbside for collection. The common law, as well as other sources, such as statutes, administrative rules, and local ordinances, are informative concerning existing legal norms of behavior. The common law is most relevant in this case.

         Oregon courts have long recognized that the people of this state have a freestanding right of privacy. As this court explained over 75 years ago with regard to that right,

"we deem it unnecessary to search for a right of property, or a contract, or a relation of confidence. The question is whether a right of privacy, distinct and of itself and not incidental to some other long recognized right, is to be accepted by the courts and a violation of the right held actionable."

Hinish v. Meier & Frank Co., 166 Or. 482, 502-03, 113 P.2d 438 (1941).

         The court in Hinish concluded that "the needs of the society in which we live" counseled in favor of recognizing a cause of action grounded in a right of privacy for [364 Or. 763] the defendants' appropriation of the plaintiff's name. Id. at 503. The court reasoned that (1) advances in technology- including the leading media of the day, such as photographs, radio, and movies-would increase the potential for invasions of privacy and (2) a "decision against the right of privacy would be nothing less than an invitation to those so inclined who control these instrumentalities * * * to put them to base uses, with complete immunity, and without regard to the hurt done to the sensibilities of individuals whose private affairs might be exploited, whether out of malice or for selfish purposes." Id. at 503-04.

         Oregonians may vindicate their legally protected interests in privacy by bringing a common law cause of action against the tortfeasor who invades those interests. In McLain v. Boise Cascade Corp., 271 Or. 549, 554, 533 P.2d 343 (1975), the court described the general rule permitting recovery for invading someone's seclusion-a species of tortious violation of privacy-by reference to the Restatement (Second) of Torts section 652B (1961), which provided:

"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable man."[4]

         This court later explained that the tort protecting one's seclusion and private affairs "protects the right of a plaintiff to be let alone." Mauri v. Smith, 324 Or. 476, 482, 929 P.2d 307 (1996) (internal quotation marks omitted). And, "[i]t is now well established in Oregon that damages may be recovered for violation of privacy." McLain, 271 Or at 554. Tortious invasion of privacy is one of the limited number of torts in Oregon in which a plaintiff ...


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